Scottish Court of Session Decisions

This was a stated case under the Workmen's Compensation Act 1897 in the matter of an arbitration under the Act between Mrs Durham, the widow of William Durham, 23 Queen Street, Leith, and Brown Brothers & Company, engineers, Rosebank Ironworks, Edinburgh. Mrs Durham claimed compensation under the Act in respect of the death of her husband, in consequence of injuries which he received in Messrs Brown's works on 23rd July 1897.

The Sheriff-Substitute (SYM) on 30th September 1898 pronounced the following interlocutor:—“Finds it not proved that the personal injuries sustained by William Durham on 23rd July last were caused by ‘accident arising out of and in the course of the employment:’ And finds that the claim cannot be maintained under the Workmen's Compensation Act 1897: Therefore assoilzies the defenders from the prayer of the petition,” &c.

A case was stated by the Sheriff-Substitute to the First Division on the appeal of Mrs Durham.

The case was stated in the following terms:—“This is an arbitration between the appellant and the respondents, in which the appellant claims compensation under the Workmen's Compensation Act 1897, in respect of the death of her husband William Durham, who died in consequence of injuries which he received on 23rd July 1898 in the respondents' works. The appellant and her said children are, in the sense of the Workmen's Compensation Act 1897, the

Page: 191↓

dependents left by the said William Durham. The defences stated to the claim are (1) that the injury which Durham suffered was not caused by accident ‘arising out of and in the course of the employment;’ and (2) that said injury was attributable to Durham's ‘serious and wilful misconduct.’ The facts proved are as follow:—The deceased William Durham was on 23rd July 1898 a workman in the employment of the respondents. His wages were on an average £1, Is. Id. per week. The employment is one to which the Workmen's Compensation Act 1897 applies. If the employers are liable to pay compensation, £164, 9s. would be proper compensation. On 23rd July 1898 Durham was engaged, along with a boilermaker named Innes, on the ground floor of the works. They were engaged in measuring certain blocks. Durham was in an inferior position as regarded Innes. It was his duty to assist Innes in any work in which the latter might be engaged. Durham had always been considered a careful workman. On the ground floor, a short distance from the place at which the two men were working, were two furnaces used for heating steel ingots. On said 23rd July one of these was not in use and was cold. Above these furnaces was a long tank (formed of an old ‘egg-end’ boiler) containing water. It communicated by piping with the doors of the furnace, which doors were so constructed as to have water in them to keep them from becoming red-hot. The top of the tank was about 16 feet from the ground. The level of the water in the tank was regulated by a ball-cock. Outside the tank was a ‘float’ or index, to enable one to note how the water stood in the tank. On said 23rd July a small stream of water was observed by the men Innes and Durham to be running down on to the top of the furnace which was not in use. The cause of it was that the ball-cock had got out of position, but this was not at the moment apparent. The water could do little or no harm unless it continued to run for a long time. In that case it might have washed out some of the fire-clay between the bricks of the furnace. Innes, on observing the water, without giving any directions to Durham, went up to the tank to see what was the cause of its running down. As he was one of the workmen nearest to the spot, it was according to his duty in the circumstances to do so that he might report to the plumbers employed in the works if anything were wrong with the piping, or to the foreman if anything was wrong with the tank. That done, the duty of Innes in the matter was completed. In order to get up to the tank Innes used a fixed iron ladder, which was rested on an iron beam, and led up to one side (the east side) of the tank, and beyond it to certain plant higher up. This was only the usual and proper way to reach the tank. It did not bring the person who used it near any shafting, and was quite safe. Innes found the ball-cock out of position, and immediately put it right. Meanwhile Durham and a man named M'Guffie also went up to the tank. Durham and M'Guffie used a temporary wooden ladder, which led to a temporary wooden staging erected near the end of the tank, and the level of which was somewhat below that of the top of the tank. This staging was being used for the erection of some pulleys unconnected with the tank and furnaces. One stepping off the wooden ladder on to the staging was not high enough to see into the tank, and was some feet away from the tank. Durham, desiring to see into the tank, left M'Guffie and moved along the staging and round to the west side of the tank, a distance of about 12 feet from the wooden ladder in the direction which is shown in the photograph No. 1. This brought him very near, and below, a shaft for driving certain fans, which shaft was about11 inches from the upper edge of the tank at the west side, and revolved at a very high rate of speed. Durham then put one foot upon a cock handle which projected from the side of the tank, reaching up his right hand at the same time to a perpendicular iron stay, which came down from the roof, in order to raise himself, and, if possible, to see into the tank, though even then he could not have done so, as the tank was covered. This position—namely, with one hand clinging to the stay and one foot on the cock handle—enabled him to lean over the revolving shaft, which, as I have mentioned, was 11 inches from the edge of the tank on that (the west) side, but it brought his breast close to, if not in contact with, the revolving shaft. The position was one of extreme and conspicuous danger, the more so that Durham was wearing a loose canvas jacket, and that just about his left shoulder was a ‘coupling' in the shaft, the inequalities in which were likely to catch his jacket. Immediately after Durham got into this position, the breast or shoulder of his jacket caught in the revolving shaft, and he was whirled round it and so injured that he died. His death was attributable to his placing himself as I have described. Just as Durham was caught by the shaft, Innes had adjusted the ball-cock, which was at his (the east) side. I was of opinion, in regard to the first ground of defence, that considerations as to fault were not in place, and that the question was merely whether the injury suffered by Durham was caused by accident ‘arising out of and in the course of the employment.’ I thought that these words ought to be construed fairly, and with regard to the fact that the Workmen's Compensation Act 1897 is a remedial statute. But so construing them, I thought that it could not be affirmed that the injury suffered by Durham in the manner which I have described was caused by an accident ‘arising out of and in the course of the employment.’ In regard to the second ground of defence, I was of opinion that the deceased William Durham, if he had been ordered to place himself in the position which I have described, would have been entitled, and indeed bound, to have refused to do so. But I have found it unnecessary to determine whether his action was ‘serious and wilful misconduct' in the sense of section 1, sub-section (2) (c), of the said Act.”

Page: 192↓

The questions of law for the opinion of the Court are—“(1) Whether I ought, upon the facts stated, to have found that the injury to William Durham was caused by an accident arising out of and in the course of the employment in the sense of section 1 (1) of the Workmen's Compensation Act 1897? (2) Was the action of Durham, which I have described, serious and wilful misconduct in the sense of said Act, sec. 1, sub-(2)( c)?” .

Section 1 of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) provides:—Sub-section (1)—“If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act.” Sub-section (2)—“Provided that ( c) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed.”

It is provided by sub-section (3) that any question arising in proceedings under the Act as to liability to pay compensation, shall, if not settled by agreement, be settled by arbitration.

Schedule 2 of the Act provides for the arbitration taking place in the Sheriff Court, and by (14) ( c) of that schedule it is provided that “it shall be competent to either party … to require the Sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either Division of the Court of Session.”

Argued for appellant—There was here a question of law, viz., whether the Sheriff on the facts before him had rightly construed the statute, and it was competent to raise such question on appeal— Bremridge v. Turnbull, November 2, 1895, 23 R. (J.C.) 12; Dickson v. Linton, June 1, 1888, 15 R. J.C.) 76. The Sheriff had taken too limited a view of the application of the Act. The accident clearly had taken place in the course of the deceased's employment, and arose out of it. As a member of the staff engaged in the engineering works it was part of his duty to help Innes in his work, and in the course of so helping him he lost his life. The Sheriff had held that he must be engaged in the particular branch of employment for which he was engaged, and that as the act in question was not exactly that particular branch the accident could not be said to be one arising out of his employment. He had further gone wrong in introducing the doctrine of contributory negligence, by holding that the fact that Durham had chosen a wrong and dangerous way of reaching the tank, supported his view as to employment. In point of fact the statute substituted for contributory negligence “seriousand wilful misconduct,” and the question whether Durham had been guilty of the latter had not been decided by the Sheriff.

Argued for respondent — (1) The appeal was incompetent. The question of law which alone could be determined by the Court must be one that had arisen before the Sheriff and had been considered by him. There must be some proposition in law which would serve as a precedent for the determination of other cases. Here there was no such question, for the Sheriff had merely given a decision upon a question of fact, and that must be final— Grant v. Wright, May 31, 1870, 3 Coup. 282; Dykes v. Dixon, February 7, 1885, 12 R. (J.C.) 17; Fairbairn v. Sanderson, October 27, 1885, 13 R. 81. The question as to the meaning of “employment” which was now argued by the appellant had not been stated to the Sheriff or considered by him. (2) But in any case the Sheriff's decision was right, for “employment” could only mean that particular form of employment in which the workman was engaged, not that of his fellow-workman. Moreover, in this case the workman had adopted a wrong and dangerous method where a perfectly safe one was provided, and it could not be said that an accident caused by his using this wrong method was one arising out of his employment.

At advising—